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Mediation and conciliation can prove to be a more effective and less stressful approach to resolving employment disputes says Jerry Gibson.
The Queen’s Speech last month confirmed that tribunal reform was to get priority with the government’s plans to refer all employment disputes to mediation.
The Department for Business Innovation and Skills (BIS) said the government’s Enterprise and Regulatory Reform bill (ERR) will “overhaul the employment tribunal system and transform the dispute resolution landscape”. The changes will include a slimmed down employment tribunal system designed to reduce the number of costly cases and make mediation the first port of call.
Mediation is a process whereby an independent person works with an employer and an individual employee, or a group of employees (or two individuals), who are having some form of disagreement or problem in the workplace. A mediator is not there to decide who’s right or wrong, but to work with the parties to help them reach a positive solution to move forward.
The process is both confidential and voluntary for the parties involved and taking ownership of the problem means that it is their solution, not that of the mediator. The mediator’s job is to help develop a solution, not to give the answer.
Particularly beneficial when entered into early in a problem situation, mediation helps make sure the process stays on track and that the employment relationship continues to an amicable conclusion, thereby avoiding the costs of recruiting a replacement.
Mediation is suitable for a variety of issues, such as performance, attendance, personality clashes and employee grievances, as well as individual rights issues around matters like redundancy, dismissal and discrimination. However, not all grievances are appropriate, so initially a mediator would help an individual or group explore the suitability of the particular issue to the mediation process.
The JIB mediation process begins by arranging a meeting at a neutral and convenient location where the issues are discussed in a structured but informal manner. The mediator will then help each party discuss and identify a range of solutions that may help resolve the issue. In most cases an action plan or agreement is drawn up to help both sides progress beyond the mediation session.
Employment tribunals are independent judicial bodies that determine disputes between employers and employees over employment rights. Tribunals differ from mediation in terms of time, cost and outcomes, not to mention stress.
The employment tribunal process, especially the hearing, can be daunting for both employers and employees. Where the employee is going to continue working for the same employer, the process can damage the working relationship between them, sometimes irreparably.
Mediation gives both employers and employees the chance to find their own solution to their problem and can help to improve the on-going relationship between them. It can also help with relationship issues and personality clashes between individuals or groups of employees which the employment tribunal process is not designed to do.
Depending on the complexity of the case, the average tribunal costs around £4,000 for business and £1,500 for a claimant, with many cases taking at least 26 weeks to reach determination. If lawyers need to become involved, the costs can rise even further.
In comparison, mediation is often completed in a day and usually costs around £1,200. In general, there is a minimal amount of preparation and no legal representation involved. The costs are therefore limited to the direct fee for the mediation, and the time spent by the parties to the mediation.
In an employment tribunal case, neither party has any control over the decision. With mediation, a mutual agreement is reached, so parties are able to retain some control over the resolution of the dispute.
Simplifying the employment tribunals system for businesses through the ERR will result in fewer claims each year. These reforms will deliver direct net savings to business of more than £10m a year with wider benefits to employers estimated at more than £40m a year.
The current system wastes a lot of resources, both in money and time. We welcome the attempts to encourage the use of mediation and compromise agreements, to reduce the time taken to reach a conclusion in an employment dispute, and to reduce the financial costs for both employers and employees.
Jerry Gibson is former Acas executive director and a mediator at Joint Industry Board Mediation Services (JIBMS).
For further information visit www.jibms.org.uk